By Steve Bergstein

WALK INTO the majestic courtroom at the United States Court of Appeals for the Second Circuit and one of the first things you see are the busts of two legendary judges who sat on this prestigious court, one level below the United States Supreme Court. The judges, Learned Hand and Henry Friendly, are as well known to legal historians as the Justices who sat on the Supreme Court. Through their busts, they continue to preside over proceedings at the Second Circuit, which, by virtue of its location in New York City, hands down rulings affecting the financial world as well as the kinds of civil liberties rulings which can only arise from the political boxing ring that is New York City and its high-profile neighborhoods, like Harlem, Times Square, Greenwich Village, Brooklyn, uptown, downtown and all points in between.

The courts in this country may have their problems, but one of the positive aspects of our court system is that they issue written opinions. We may not like the decisions, but at least we know why the decisions were issued. Contrast that with the other branches of government, which do much of their work in secret and water down their public pronouncements. If the courts hand down half-assed decisions, legal scholars and other courts will attack the legal reasoning. Sometimes badly reasoned court decisions become part of the national dialogue and those court rulings get overturned or modified.

However, the courts are talking to very few people. The general public does not read court decisions, which is a shame, because some of these decisions can be best sellers. If you consider that some of the most successful authors of the last 20 years are legal fiction writers, it's a shame that some of the court rulings never become widely publicized considering the drama and human depravity that often surfaces through even a single lawsuit over civil rights or some other injustice. Not only are the written opinions important in educating us about why the court made its decision, but some of them are quite readable. I maintain a legal blog that covers the civil rights decisions of the Second Circuit Court of Appeals.  In October 2007, my eyes lit up when I checked the daily decisions and saw that one case involved a guy who claimed he was forced to confess to a crime that he did not commit. This scenario surfaces from time to time for murders and other crimes, but this case was different because it involved the crime of the century: the 9/11 hijackings which launched this country into a new era.

An Egyptian national, Abdullah Higazy, was staying in a hotel in New York City on September 11, 2001 and the hotel emptied out when the planes hit the towers. Later, the hotel found device that allows you to communicate with airline pilots in the closet of his room. Investigators thought this guy had something to do with 9/11 so they questioned him. According to Higazi, the investigators coerced him into confessing to a role in 9/11. Higazi first adamantly denied any involvement with 9/11 and could not believe what was happening to him. Then, he says, the investigator said his family would go through hell in Egypt, where they torture people like Saddam Hussein. Higazy then realized he had a choice: he could continue denying the radio was his and his family suffers ungodly torture in Egypt or he confesses and his family is spared. Of course, by confessing, Higazy's life is worth garbage at that point, but ... well, that's why coerced confessions are outlawed in the United States.

So Higazy "confesses" and he's processed by the criminal justice system. His future looks quite bleak. Meanwhile, an airline pilot shows up at the hotel and asks for his radio back. This is like something out of the movies. Higazi was innocent!  The radio belonged to the pilot, not Higazy, and Higazy was free to go, the victim of horrible timing. Next, he sued the hotel and the FBI agent for coercing his confession. The bottom line in the Court of Appeals: Higazy has a case and may recover damages for this injustice.

As I read the opinion I realized it was a 44-page epic, too long for me to print out but I blogged about it while I read it online. Then something strange happened: just a few minutes after I posted the blog, the opinion vanished from the Court of Appeals website! I had never seen this before, and what made it all the more strange was that it involved a coerced confession over 9/11. What the hell was going on?

I let some other legal bloggers know about this, and they promptly made note of it. Then someone sent one of those blogs to How Appealing, (probably very few of them were floating around since the opinion was posted for a brief period of time) and How Appealing posted the decision.

Then, things got even stranger. The Court of Appeals actually phoned How Appealing to request that they remove the opinion from the website since it contained classified information. The Court said that a revised opinion would come out the next day without the classified information. How Appealing refused to remove the opinion. Through it all, hundreds of people came to my legal blog to see my summary of the opinion. It was either my blog or printing out and reading a 44-page epic.

The next day, the Court of Appeals reissued the Higazy opinion -- with a redaction. The court omitted from the revised decision facts about how the FBI agent extracted the false confession from Higazy. For some reason, this information is classified. Just as the opinion gets interesting, when we are about to learn how an FBI agent named Templeton squeezed the "truth" out of Higazy, the opinion reads at page 7: "This opinion has been redacted because portions of the record are under seal. For the purposes of the summary judgment motion, Templeton did not contest that Higazy's statements were coerced."

So the opinion, while still interesting, is much less interesting because now we don't know how the FBI extracts false confessions from people. Looking at things from another angle, we don't know how the FBI gets suspected terrorists to tell the truth. Except that we actually, do know this, because the opinion is still available at the How Appealing website, and the classified portion of the opinion is embedded in the Internet for all eternity. Not only is this decision not to remove the premature opinion now a subject of debate, but now we can see the part of the ruling that the

Court redacted:

Higazy alleges that during the polygraph, Templeton told him that he should cooperate, and explained that if Higazy did not cooperate, the FBI would make his brother "live in scrutiny" and would "make sure that Egyptian security gives [his] family hell." Templeton later admitted that he knew how the Egyptian security forces operated: "that they had a security service, that their laws are different than ours, that they are probably allowed to do things in that country where they don't advise people of their rights, they don't – yeah, probably about torture, sure."

Higazy later said, "I knew that I couldn't prove my innocence, and I knew that my family was in danger." He explained that the only thing that went through his head was "Oh my God, I am screwed and my family's in danger. If I say this device is mine, I'm screwed and my family is going to be safe. If I say this device is not mine, I'm screwed and my family's in danger. And Agent Templeton made it quite clear that cooperate had to mean saying something else other than this device is not mine."

Higazy explained why he feared for his family:

"The Egyptian government has very little tolerance for anybody who is [missing text?] they're suspicious of being a terrorist. To give you an idea, Saddam's security force—later on called his henchmen—a lot of them learned their methods and techniques in Egypt; torture, rape, some stuff would be even too sick to . . . . My father is 67. My mother is 61. I have a brother who developed arthritis at 19. He still has it today. When the word 'torture' comes at least for my brother, I mean, all they have to do is really just press on one of these knuckles. I couldn't imagine them doing anything to my sister."

Higazy added:

" [L]et's just say a lot of people in Egypt would stay away from a family that they know or they believe or even rumored to have anything to do with terrorists and by the same token, some people who actually could be —might try to get to them and somebody might actually make a connection. I wasn't going to risk that. I wasn't going to risk that, so I thought to myself what could I say that he would believe. What could I say that's convincing? And I said okay."

That's how they do it, folks. If a foreign national is suspected of terrorist activity, the FBI will threaten to have a brutal foreign government punish his family. And punishment in a place like Egypt is not like punishment here. Punishment here consists of solitary confinement and a very long prison term. Punishment over there is torture.

The Higazy saga sums up life in this country since September 11, 2001. That date is now the dividing line in modern American history. We knew things would change after 9/11, but we didn't know how much. The Second Circuit's redaction of the good stuff from the Higazy ruling says quite a bit about our current world, a world that will not change anytime soon. We now know that the FBI threatened an innocent man with torture if he didn't confess to the crime of the century. We know that even the Second Circuit -- one of the more liberal courts in this country -- will engage in an obvious attempt to shield or protect the FBI from an embarrassing truth about law enforcement methods in this country and even ask a law blogger to censor his website by taking down the original PDF of the decision. And we also know that the media is still turning a blind eye to these issues, as shown by the traditional media's failure to cover this tale of two decisions. 

The Higazy saga told me something else about this country. The progressive media on-line -- including bloggers and Internet columnists -- was outraged about what the Second Circuit did and how the FBI threatened an innocent man with torture. This was a good sign. Thanks to the Internet, there is a permanent progressive voice in this country. You might say that these Internet bloggers are preaching to the choir. But that's a good thing. The dissenters need to know that they are not alone and that they can count on the Internet to keep them apprised of what's really going on in this country. Progressives are emboldened by the dissenters on-line who regularly provide us with good and timely analysis of current events and the daily outrages arising from the terrible Bush administration.

What would Learned Hand make of all of this? He was a federal judge on the Court of Appeals for 37 years, from 1924 through 1961. Through his bust in the courtroom, his spirit continues to preside over the court. The irony is that Learned Hand was one of the first judges in this country to really honor the First Amendment, ruling in 1917 (as a trial judge) that the Espionage Act violated the First Amendment because it prohibited dissenters from urging that their countrymen violate the law. Hand ruled that the "New York postmaster's refusal to allow circulation of an antiwar journal under the statute violated the First Amendment," reasoning that "To assimilate agitation, legitimate as such, with direct incitement to violent resistance, is to disregard the tolerance of all methods of political agitation which in normal times is a safeguard of free government." He affirmed that if a citizen "stops short of urging upon others that it is their duty or their interest to resist the law,' then he or she is protected by the First Amendment."  In other words, so long as you don't urge someone to break the law, you can agitate without fear of being arrested.

This reasoning may not sound profound in 2008, but it was profound in 1917, before the First Amendment was really brought to life as the century progressed. I think Learned Hand would have been outraged had someone told him to censor or tone down his own written decisions to protect the government. Exactly 90 years after Hand issued that ruling which rejected the Espionage Act, the same Court of Appeals on which Learned Hand sat acted similarly, withdrawing a provocative opinion, replacing it with a sanitized version and then asking an independent legal blogger to do the same. That is not a world that I want to live in, and I doubt that Learned Hand would have wanted to live in a world like that either.